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Lawfare from the Bench

IN 1861, ACTING through his agents, Abraham Lincoln detained a Marylander named John Merryman (who had waged private war against the federal government), suspended the legal writ of habeas corpus that is ordinarily used to test the validity of detention in court, and then ignored a judicial ruling, issued by Chief Justice Roger Taney, that declared the suspension unconstitutional. In Brian McGinty’s engaging treatment of this famous episode, Lincoln comes across as a familiar figure—both thoughtful and decisive, respectful of constitutional law yet aware of the unusual necessities of the time. More novel is McGinty’s picture of Lincoln’s judicial adversary. Taney’s lightly concealed sympathy for the rebellion, his rush to issue judgment in Merryman’s case without even hearing arguments from counsel, his later efforts to thwart federal proceedings against indicted traitors, and his willingness to portray the law of habeas corpus as far more clear than it really was, all amounted to enlisting the courts as a weapon against the government—a form of “lawfare” in one sense of that term, conducted from the judicial bench itself.

Merryman is sometimes described as an “agitator,” as though he stood on a soapbox in downtown Baltimore and denounced Lincoln’s politics. In fact, he was an armed and active rebel. McGinty usefully clarifies the true extent of Merryman’s violence, and the larger context of the episode. In the spring and early summer of 1861, Washington itself was surrounded on all sides by potential enemies: Virginia was soon to become a leader of the rebellion, while Maryland was torn between loyalists and southern sympathizers. Federal troops attempting passage through Maryland were set upon by armed mobs and both suffered and dealt casualties, while armed “militia”—organized quasi-military bodies cloaked with some dubious semblance of authority from state officials—set about thwarting federal military operations and destroying federal property. Merryman, an officer in one such militia, led an expedition that burned bridges and cut telegraph wires in order to hamper the movement of federal troops.

This was an act of private war, and when Merryman was captured and held in Fort McHenry, the aim was not so much to enforce the law as to ward off a military threat. Congress would not convene in special session until July 4, so the question facing Lincoln was what to do in the interim, pending congressional consideration. McGinty makes clear that Lincoln’s suspension of habeas corpus was decided principally on military grounds, and that Taney’s efforts to thwart Lincoln—if successful—would have amounted to an interference with ongoing military operations.

When Merryman applied for a writ of habeas corpus, Taney granted it and later issued an opinion as a Supreme Court Justice sitting “in chambers,” as opposed to an opinion of the full Court. Individual justices are authorized by statute to issue the writ, so Taney’s jurisdiction was valid, but his declaration that Lincoln’s suspension was unconstitutional portrayed the law as clear and absolute, when in fact it was opaque, and remains so to this day. The main issue was whether the Constitution authorized Congress alone to suspend the writ, or whether the President had concurrent power to do so, at least when—as Lincoln emphasized—Congress was not in session. The issue was one of first impression, as the writ had never been suspended before. One might think that the question should be decided only after full deliberation, but Taney promptly issued the writ and ordered Merryman to be brought to court, without even hearing argument from counsel. No counsel for the government was even present, and the military’s request for a brief delay to receive instructions from Lincoln was ignored. (Taney never actually ordered Merryman released, but only because he knew that such an order would be futile).

Taney’s opinion drew together textual and historical arguments, as well as non-binding statements from the earlier justices John Marshall and Joseph Story, to hold that only Congress could suspend the writ, so that the President lacked power to do so even when Congress was not in session. All of Taney’s arguments were soon contested by reputable commentators, and later cases suggested that statutes already in place when Lincoln acted might have been read to authorize the suspension—if Taney had considered them. The full Court has never definitively resolved the question that Taney hastened to answer, and in any event Congress eventually ratified Lincoln’s action in 1863. Taney’s in-chambers opinion portrayed Lincoln as violating clearly established constitutional law, when in fact Lincoln had acted on reasonable, even if debatable, legal grounds.

All this is familiar. The fresh issue raised by McGinty’s account is what a President should do about a Justice, even a Chief Justice, whose actions have the effect—and perhaps even the intention—of giving aid and comfort to armed enemies of the state. McGinty details that Taney was “guarded in expressing his sentiments … but in his private correspondence he gave voice to sympathies not much different from Merryman’s.” To sympathy, that is, for a rebellion that Taney’s own aggressive opinion in the Dred Scott case in 1857 had helped to precipitate. McGinty quotes “Taney’s principal biographer, Carl Brent Swisher, [who] wrote that ‘the chief justice’s Merryman opinion had the impact of a military victory for the South.’”

Indeed, it is hard to see Taney’s conduct as anything but two-faced. In Merryman, Taney wrote that when the courts are open for business, as they were in Maryland, the writ need not be suspended because federal prosecutions are available. Yet when the United States did later indict Merryman and sixty similar figures for treason in federal court, Taney used his position as superintending justice for the relevant circuit to indefinitely postpone the proceedings, while Merryman was free on bail. Taney, in other words, not only gave a one-sided and politically motivated ruling of law, but also used his judicial powers to protect internal enemies from legal proceedings that Taney himself had purported to endorse as a valid alternative to Lincoln’s order.

When the judges act this way, fidelity to the rule of law and the larger constitutional order may itself require ignoring or violating their commands. Andrew Jackson, when serving as a general in 1814-1815, once imprisoned two federal judges and a U.S. Attorney whose attempts to issue a writ of habeas corpus interfered, in Jackson’s opinion, with operations in the New Orleans military theater. Lincoln did not go nearly so far. McGinty convincingly refutes a rumor, spread most notably by Taney himself, that Lincoln contemplated arresting the Chief Justice of the United States. But Lincoln surely understood that Taney was hardly the impartial oracle of the law that he portrayed himself as being, and that his politicized judging might have grave military consequences. In light of Jackson’s rather more direct method for coping with judicial lawfare, Lincoln’s suspension of the writ seems temperate.

It takes at least two actors to create a constitutional crisis. Many earlier accounts of the Merryman episode, especially by lawyers, have quite understandably put Lincoln front and center. McGinty’s account offers a more vivid and rounded picture of the episode by giving Taney’s motivations and hypocrisies equal billing; doing so puts Lincoln’s actions in an even more favorable light than history already has. Beset by enemies on all sides, Lincoln had also to cope with calculated opposition clothed in judicial robes, and he did so with admirable restraint.

Adrian Vermeule is John H. Watson Professor of Law, Harvard Law School.